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775 So. 2d 308

Garcia v. State

District Court of Appeal of Florida

Decided February 18, 2000

District Court of Appeal of Florida · decided 2000-02-18

Relies on 660 So. 2d 269 - State v. Darrisaw

Decided 2000-02-18

NORTHCUTT, Judge.

¶1Alfredo Garcia challenges his upward departure sentences imposed after he pleaded nolo contendere to sale of cocaine and sale and delivery of marijuana. As justification for the departure the circuit court cited Garcia’s escalating pattern of *309criminal activity and the temporal proximity of his convictions. After a thorough review of Garcia’s present and prior convictions, we conclude that the convictions did not meet the definition of “escalating” so as to justify the departure. See § 921.001(8), Fla. Stat. (1997); State v. Darrisaw, 660 So.2d 269 (Fla.1995)(holding that if offenses meet "definition of “escalating,” then “pattern” requirement can be satisfied either where offenses are committed in temporal proximity or are similar to each other).

¶2We find no merit in Garcia’s argument that we should instruct the circuit court to impose a downward departure sentence. Accordingly, we vacate the ten-year sentences imposed on both counts and remand for resentencing within the guidelines.

¶3Reversed and remanded with directions.

BLUE, A.C.J., and WHATLEY, J., Concur.
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